To Mary Willing Byrd
In Council March 1st 1781
I am sorry it is not in my power to send you the Law you desire, having only one Copy of it myself and that bound up with the laws of the session of October 1776 at which it was passed. The description of the offence which is the subject of the Act, is in these words: ‘if a man do levy war against this Commonwealth within the Same, or be adherent to the enemies of the Commonwealth within the same, giving to them aid or Comfort in the Commonwealth or elsewhere &c. thereof be legally convicted, &c. &c.’ The situation in which you were placed by the landing of the enemy at Westover was undoubtedly difficult. Whether you may have been able to steer with Precision between the will of those in whose Power you were, and the Laws of your Country is a Question on which the laws have not made me the Judge. The Letter which you mention to have written while the enemys Fleet lay at Westover being thought to contain the acknowledgement of an offence against the Commonwealth, was put into the Hands of the Executive officially and by them remitted to the Attorney General, with instructions to proceed as the Laws should require. I believe it is his Idea that these proceedings must be as for a misdemeanor. They will probably take place immediately under the Directions of a late act which ordains pleadings in certain Cases from Day to Day till final Decision, and I hope will furnish you an ample occasion of Justification. The Flag having come on a Permission from Baron Steuben given before the Determination to discontinue that kind of intercourse, we referred the whole of that matter to him, save only that his promise having been to admit an identical Restitution of Slaves and the flag instead of that bringing a Compensation in Merchandize, were of opinion and determined that this could not be admitted to be received, as, allowing the same indulgence equally it would immediately become regular Commerce. This was the only order or resolution formed by the Executive on any Thing relative to this Flag or to yourself so far as connected with her. Mr. Hare was thought to have conducted himself with great Impropriety, yet a desire to afford no Colour of precedent for violating the sacred Rights of a Flag has I believe induced Baron Steuben to remit Mr. Hare and his vessel again to his Commander.
Tho’ my office requires that I should be divested of private estimations, yet I must be permitted to assure you that it will give me very real Pleasure to know that the Issue from this troublesome Business is perfectly to your satisfaction, and that I am, &c. &c.,
A late act which ordains pleadings in certain cases from day to day: This was the Act passed at the Oct. 1780 session amending the Act “for giving farther powers to the governour and council,” under which, in case of invasion or insurrection, the governor with the advice of council was authorized to constitute special courts for the trial of “all treasons and misprisions of treason, and also all offences against an act” of May 1780 “affixing penalties to certain crimes injurious to the independence of America but less than treason’ ” (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends x, 268–70, 386–9).